Telephonic Inc. v. Montgomery Plaza Co‪.‬

The plaintiffs sued the defendant for breach of contract and prayed for compensatory and punitive damages. Notice of dismissal with prejudice was then filed by plaintiffs. Section 21-1-1(41)(a), N.M.S.A. 1953 (Repl. Vol. 4). A motion to correct the notice of dismissal because of clerical error was filed. Section 21-1-(60)(a), N.M.S.A. 1953 (Repl. Vol. 4). Answer and counterclaim for malicious prosecution were then filed by the defendant. Plaintiffs next filed a motion to dismiss their own complaint without prejudice and to dismiss defendants counterclaim. The lower court dismissed plaintiffs complaint without prejudice and dismissed defendants counterclaim. Defendant appeals. We affirm and correct the dismissal of the counterclaim to read "without prejudice."